Previously I had already highlighted the first request of the Italian authorities to the judges of the Court of the sea, based in Hamburg, before the international arbitration of the sea was composed, according to annex VII of the CNUDM, which concerned the adoption of a a temporary measure whose aim was to bring back the military of the San Marco Regiment Salvatore Girone and Massimiliano Latorre's stay in Italy.
As was well known, the first request of the second precautionary measure by the Italian agent, presented at the end of July, then frozen or rejected towards the end of August of the 2015 by the Hamburg Sea Court, concerned the immediate cancellation of restrictions on personal freedom, security and freedom to move, as well as Massimiliano Latorre's stay in our country for health reasons.
Compared to the Tribunal of the Sea, the Arbitration Tribunal, based in the Netherlands, composed of 5 arbitration judges, Vladimir Golitsyn, Hin-Hyun Paik, Patrick Robinson, Francesco Francioni e Patibandla Chandrasekhara Rao, established in order to find a solution to the controversy still standing between the Italian Republic and the Union of India on the merchant ship Enrica Lexie and of the two infantry of the navy Salvatore Girone e Massimiliano Latorre, with the order PCA Case No. 2015-28 of 29 April 2016, has accepted the request of the Italian agent, with some conditions, which have finally materialized completely the return to his Puglia of the infante Salvatore Girone.
The response of the Indian authorities was not long in coming, in the sense that the Union of India, in order to give a green light to our country's request to return Salvatore Girone, in addition to emphasizing that the authorities of Rome they had not correctly and clearly interpreted the order or device of the arbitration judges of The Hague and that the infantryman Salvatore Girone was not entirely free, although the conditions of his provisional liberty had to be established by the Supreme Court of the Union of India, he also demanded and, obviously, obtained satisfactory assurances, as, first, the return of the Fante Girone in India, in case the judges of the sea should believe that the jurisdiction to try the two Marò is up to the Union of India. For this guarantee, the Italian authorities have formalized their commitment through a declaration and following the best practices, accepted by the Hague Arbitration Court as a document de jure binding.
Here, the modus operandi of the Union of India, which had highlighted, in the proceedings before the judges of the Court of the Sea of Hamburg, the question that Italy, although subject to international law, had not complied with the rules of the jus gentium, since 3 February 2012 had not issued the sentence issued by the International Court of Justice, Germany c. Italy, on Nazi crimes: the Italian sentences condemning the German state are illegitimate. On the basis of this sentence, the International Court of Justice considered our country a violator of the obligation to respect immunities in respect of Germany, in terms of the rule of immunity from jurisdiction and that of enforcement for violation of the right to humanity put in place, in illo tempore, from the regime of the third Reich between the 1943 and the 1945. Here is the concern of the Indian authorities not to trust the Italian authorities. A fundamental passage of the device consists in the fact that the two countries, Italy and the Union of India, must cooperate, even before the Indian Supreme Court, which will be responsible for presenting the clear conditions for the return of the infantryman Salvatore Girone, as well as the constraint for the Italian state to do so that the same infantryman Girone presents himself to an authority in Italy, designated by the college of judges of the Indian Supreme Court, at intervals established by the same Supreme Court of the Union of India; moreover, the infante of the San Marco Regiment of the Italian Navy will have to hand in your passport to the Italian authorities without the possibility for the Pugliese Girone to abandon the Italian soil and without the permission of the judges of the Indian Supreme Court. It should also be added that the Union of India has set another condition concerning the obligation of our country to keep the Supreme Court of India informed every three months about the situation of the marò Salvatore Girone in Italy.
Both States, in addition, will be obliged to inform the judges of the Hague Arbitration Court about the measures they will take to give effect to the arbitration decision itself and, in the event that no report is delivered, the president of Arbitration tribunal may be invested independently in the acquisition of all necessary information.
Finally, in reading the device of the Arbitral Tribunal of the Sea, we can add that our country has often traveled the path of international law around this absurd story, although the Italian authorities have very often presented purely legal arguments in order to to protect the principle of its exclusive competence on the two Italian soldiers. It must be acknowledged that the appeal by Italy, presented a few years ago, to the arbitration of the sea marked a new course, setting aside the design, in my opinion completely wrong, of having to continue to defend itself in the process, instead of the trial before the courts of the Union of India, given that - as he claimed Giuliomaria Terzi of Sant'Agata, former Minister of Foreign Affairs (S. Zurlo, “Thrown away over two years, they never return to India! ”, Interview with Ambassador Giuliomaria Terzi di Sant'Agata, in The newspaper, 3 May 2016, p.2-3) - “it was a diplomatic and political disaster, in which Italy's dignity was trampled under the indifference of those who had to defend it".
The long and complex dispute has damaged relations between the two countries and for the next two or three years, how long the arbitration will last, it is difficult to predict a complete thaw, for the reason that we enter a very complex and, I would say, very delicate phase. I believe it is necessary for both States to show proof of collaboration and docility to avoid making this dispute even more bitter. In my opinion, it would be interesting if both Italy and the Union of India had traveled the path of diplomatic negotiation, which could have led to an early settlement of the dispute without having to wait for the outcome of the Arbitral Tribunal for the Sea .
A note from the 26 Ministry of Foreign Affairs and International Cooperation on May 2016 communicated the return to Italy of the infante Salvatore Girone, decided by the Supreme Court of the Union of India, recalling that the latter respected the provisions of the device PCA Case No. 2015-28, issued on April 29 of the same year. Thanks to the commitment, both States have placed themselves on the same line established by the judges of the Court of the Sea in The Hague, in which there was extensive collaboration to outline the conditions and procedures for the return and stay in Italy of Girone, in pending arbitration procedure on the matter Enrica Lexie. All this happened with regard to the assurances given by the Italian authorities in complying with the conditions and the steps determined by the judges of the Supreme Court of the Union of India.
The decision taken can be considered very fundamental for the reason that recognizes the commitment started by the Italian authorities through the presentation of resorting to arbitration established by the United Nations Convention on the Law of the Sea (1982 Montego Bay Convention), a few years ago , at the Court of the Sea of Hamburg, which had as its objective to make the reasons of the two infantry of the San Marco Regiment of the Italian Navy prevail. The judgment of the arbitration judges will be awaited in a couple of years, hoping that this absurd and shameful history of the sea will be ended.
(photo: web)
